Torturing precedent

Some comments and questions on the recent DC Circuit op. in Lakhdar v. Bush -

1. Why examine habeas corpus as it stood in 1789? Originalism aside, as Justice Holmes put it, the framers of constitutions call into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. Courts are no strangers to imbuing FRs with new meanings and interpretations, whether found lurking in dark penumbral fringes or crafted out of thin air.

2. The opinion seems to commit the same error as the majority in ADM Jabalpur which regarded Art. 21 as the sole repository of all liberty and held it to be validly suspended.

3. Did the US Supreme Court accept a dangerous half measure by claiming habeas jurisdiction over only pending claims? Did it implicitly accept the statute’s denial of fresh cases in Hamdan?

4. It is a stretch to claim that the US does not exercise sovereignty over G'bay. It exercises at least as much sovereignty as it does over its embassy in India (which, incidentally, is also held on a permanent lease).

5. Is G'bay comparable with a US control (temp/permanent) over foreign territory? Admittedly grant of constitutional rights to all places where US forces temporarily exercise some measure of dominion could have unwieldy consequences.

6. The courts error lies in concluding that deprivation of habeas corpus does not offend the Suspension Clause. The dissent's approach of trying to distinguish individual rights as against legislative restraints is muddleheaded and unworkable. Its not surprising that most who have commented favourably on the dissent have maintained a studied silence on this aspect.

I'm beginning to understand why the Americans call it 'con' law.